This officer was hiding on his knees in some bushes; he thought his exact location needed to stay secret.

Gist

The trial court found Palmer guilty of possession of a controlled substance with intent to deliver. He got 6 years.

At trial, Chicago police officer Paul Zogg, a 15-year veteran of the police force, testified that he and his partner, Officer J. Rojas, were working as surveillance officers with a narcotics team in the area of 4037 West Jackson Boulevard.

Zogg, who was familiar with the neighborhood from having conducted “dozens and dozens of surveillances” in the area over the past 11 years, explained that the building at the given address was an abandoned two-flat.

Facts

About 11 p.m., Zogg saw Palmer on the porch and steps area of the two-flat.

Zogg was approximately 40 yards from defendant, using 10 power binoculars. Although it was dark outside, a streetlight immediately in front of the two-flat provided light. Palmer was wearing a gray jacket, gray hoodie, blue jeans, and light green shoes.

Zogg testified that during his surveillance, three different men approached Palmer on separate occasions. On each occasion, the customer gave United States currency to Palmer. Palmer would then place the money in his right jacket pocket, pull out a yellow strip of tape from his left jacket pocket, and tear off and tender to the customer items that had been attached to the strip.

After the third transaction, Zogg radioed the enforcement officers on his team, broke surveillance, and approached Palmer and his third customer, who was later determined to be codefendant Hardiman. The two men fled into the two flat.

Just before Palmer entered the building, he dropped the yellow strip at the top of the steps. Zogg, who was about 10 yards behind Palmer at that point, picked up the yellow strip. He, Officer Rojas, and the enforcement officers then pursued Palmer inside the building.

Rojas detained Palmer in the vestibule area and Zogg detained Hardiman in the rear of the building. Once Palmer was in custody, Rojas conducted a custodial search of his person in Zogg’s presence. Rojas recovered $20 in multiple denominations from Palmer’s right jacket pocket. Zogg testified that the item he had recovered at the top of the steps consisted of two yellow strips holding 16 clear zip baggies, each with a “blue lady” design on them and each containing suspect heroin.

Questioning On Surveillance Location

On cross-examination, Zogg testified that his surveillance of Palmer lasted less than 10 minutes, that he periodically radioed enforcement officers during the surveillance, and that less than five minutes passed between the time he broke surveillance and Palmer was detained.

When asked how Palmer could have engaged in three narcotics transactions but only have $20 on him, Zogg explained that the recovered items were “nickel hit bags of heroin,” meaning they sold for $5 each.

He also explained that the cash recovered from Palmer was not inventoried because, pursuant to department policy, Palmer was allowed to retain the money.

Defense counsel then questioned Zogg about his surveillance location as follows:

Q. *** You stated that you had observed my client for, approximately, ten minutes; and that you were 20 to 40 feet away?

A. No, I was about 40 yards away, Counsel.

Q. I’m sorry, 40 yards away?

A. Correct.

Q. And you had to use binoculars?

A. I do, correct.

Q. And were you elevated or on foot?

A. Street level.

Q. Were you in a vehicle or outside of a vehicle?

A. Outside of a vehicle.

Q. Were you in plain clothes or uniform?

A. Uniform, with cover clothing over the top of it, that being a camouflage jacket.

Q. Were you working alone or with a partner?

A. Surveillance officer was Rojas.

Q. And you said you were on the street level, correct?

A. That’s correct.”

Zogg further testified on cross-examination that during his surveillance,

(i) he had a front view of Palmer,
(ii) Officer Rojas was “in the rough vicinity” of his own surveillance location and
(iii) they were observing Palmer from the same direction.

The Objection

When defense counsel asked where exactly Zogg had been located, the prosecutor objected, arguing against disclosure due to officer safety.

Defense counsel responded that concerns for officer safety did not apply, as Zogg had stated he was on street level, in uniform, and using a radio, which indicated this was not an undercover situation.

The trial court had Zogg leave the room and then addressed the attorneys regarding officer safety.

The prosecutor answered that he believed the surveillance location “may be a spot that they still use,” and suggested that the court have an in camera conversation with the officer on that topic. Defense counsel responded that based on Zogg’s testimony that he was at street level and in uniform, the location could not be secret since “anybody in the neighborhood who walks by is going to see the cops.”

In Camera Inspection

The trial court decided to hold an “in camera review of the information” in the presence of the prosecutor and defense counsel.

In chambers, the prosecutor questioned Zogg as follows:

Q. Officer, were you outside your—were you outside of your vehicle?

A. That’s correct.

Q. And were you on the street?

A. No.

Q. Or were you in a building?

A. Neither.

Q. Where were you?

A. At—there’s a vacant property there, with ample vegetation.

Q. I’m sorry, I didn’t hear the—

A. Vacant lot with a lot of vegetation.

At this point, the trial court stopped the questioning and went off record. When the court came back on record, it stated,

“Based on the representation that it was a spot that they use continually, and revealing it will compromise officer safety—.”

Back In Court

The trial court ruled that the surveillance location would not be revealed, but defense counsel would be permitted to inquire as to other circumstances surrounding the location.

Defense counsel then elicited from Zogg that in his surveillance location, he was kneeling and surrounded by bushes, grass, and weeds; that his head was above the shrubs; and that he held binoculars to his face.

In closing, defense counsel questioned Officer Zogg’s credibility.

As relevant to this appeal, she argued that Zogg’s claim that he observed Palmer engage in narcotics transactions did not “make very much sense, because he is saying that he can see *** he can’t reveal his location, because he has to be hidden, but he can see everything perfectly, when it comes to my client.”

Counsel asserted that her cross-examination of Zogg was limited because the surveillance location was not revealed, but nevertheless maintained that Zogg’s ability to observe Palmer was questionable because “there was vegetation in the way.”

Started With Informant’s Privilege

Criminal defendants have a constitutional right to confront witnesses against them, which includes the right to cross-examination. See U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. Yet, the right to cross-examination is not absolute.

This court has developed a consistent and long-standing body of law regarding the privilege.

It was first recognized in Illinois in People v. Criss, 294 Ill. App. 3d 276 (1998), and evolved from the informant’s privilege, which is codified in the Illinois Compiled Statutes. See 735 ILCS 5/8­-802.3 (West 2012).

Whether disclosure is required is determined on a case-by-case basis, with the trial court balancing the public interest in keeping the location secret against the defendant’s interest in preparing a defense and right to test the credibility of a witness by cross-examination.

The more important a witness is to the State’s case, the more important the defendant’s right to cross-examination concerning the surveillance location becomes.

The Surveillance Privilege

The State carries this burden by presenting evidence that the surveillance location was either-

(1) on private property with the permission of the owner or
(2) in a useful location, the utility of which would be compromised by disclosure.

If there is no question about a surveillance officer’s ability to observe or evidence of the crime in question appears on a contemporaneous video recording, disclosure would not be required.

In contrast, if the prosecution’s case depends almost exclusively on one police officer’s testimony, disclosure must “almost always” be required.

How To Run The In Camera Inspection

To evaluate whether the privilege applies, the trial court should hold an in camera hearing, outside the presence of the defendant and defense counsel, during which the State’s witness must reveal the surveillance location and make a preliminary showing that disclosure of that location would harm the public interest.

Then, the trial court should weigh the defendant’s need for the surveillance location against the public’s interest in nondisclosure.

Relevant Factors

Factors to be considered in evaluating the public interest in nondisclosure include

the crime charged

the possible defenses and

the potential significance of the privileged information.

If the State satisfies its burden of proof at the in camera hearing, then the burden shifts to the defendant to overcome the privilege.

How Defense Can Overcome The Privilege

The defendant’s burden at this point varies depending on the timing of the invocation of the privilege.

Pretrial Challenge

If the surveillance location privilege was invoked or challenged pretrial, the defendant may overcome it by making a strong showing that the disclosure of the surveillance location is material or necessary to the defense and that his need for the information outweighs the public’s interest in keeping the location secret.

During Trial Challenge

In contrast, if the State first invokes the privilege at trial then the defendant need only show that the surveillance location is relevant and helpful to his defense, or is essential to the fair determination of the cause.

Analysis

Here, the State’s invocation of the privilege at trial triggered an in camera hearing.

The court indicated that Zogg had represented that the location was a spot the police used continually and that revealing it would compromise officer safety.

Defense counsel argued that the exact surveillance location was necessary in order to cross-examine Zogg regarding his ability “to see what he says he saw” through the vegetation he was using to conceal himself.

Here, the trial court failed to take into account other factors such as

(i) The lower burden Palmer was required to meet to obtain disclosure
(ii) Zogg’s status as the State’s only live witness, and
(iii) The fact that surveillance was conducted from a vacant lot, which does not implicate the safety of cooperating landowners.

First, as noted, when the surveillance location privilege is invoked at trial, the defendant, in order to overcome the privilege, is only required to show that the exact location is relevant and helpful to his defense.

Particularly since Zogg testified that his body was completely concealed by vegetation, but that he was still able to see Palmer’s actions, the disclosure of the area in the vacant lot where Zogg positioned himself would have enabled defense counsel to challenge that testimony more effectively.

Thus, this information was relevant and helpful to Palmer’s defense.

Second, it has long been the position of this court that when the State’s case depends almost exclusively on one police officer’s testimony, disclosure must “almost always” be ordered.

Here, the State’s case against Palmer rested almost entirely upon Zogg’s testimony, the State’s sole live witness.

Defense counsel’s trial strategy was to challenge Zogg’s credibility via cross-examination—the principal means to test a witness’s credibility. Because Zogg’s testimony provided the only evidence that Palmer had engaged in three hand-to-hand narcotics transactions in front of the two-flat, Zogg’s ability to see the porch and steps of that two-flat from his point of observation was highly relevant to the credibility of his testimony, and disclosure of the location would have been helpful to the defense.

We agree with Palmer that asking a witness if his sight line was clear is pointless if the witness’s answer cannot then be tested by specific questions based on his exact location.

By blocking disclosure of the surveillance location, the trial court seriously hampered Palmer’s ability to test the credibility of the only witness against him.

Third and finally, the circumstances here, involving an officer concealing himself behind vegetation in a vacant lot, do not implicate the safety concerns of property owners who allow police to conduct surveillance from private property. And while officer safety is also a concern underlying the surveillance location privilege, we perceive no greater threat to officer safety as a result of disclosure in this case given that anyone selling drugs in the vicinity of 4037 West Jackson Boulevard now knows that officers conceal themselves behind vegetation in vacant lots nearby.

Holding

The trial court abused its discretion when it applied the surveillance location privilege in this case.

The failure to disclose Zogg’s location—denied Palmer a fair trial.

Thus, we reverse Palmer’s conviction and remand for a new trial, during which the State must disclose Zogg’s surveillance location.